Daviti Tsintsadze v. Boston, City of - Public Records (SPR 20202028)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 28, 2020 SPR20/2028 James Megee Assistant Corporation Counsel City of Boston 1 City Hall Plaza, Room 615 Boston, MA 02201 Dear Attorney Megee: I have received your petition on behalf of the City of Boston (City) requesting an extension of time to produce records and permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv). As required by law, the City furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). Specifically, Daviti Tsintsadze requested “[r]ecordings of Police body camera videos of all the policemen who were involved in 31 May 2020 unrests in Boston's streets.” Petitions for an extension of time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

James Megee, Esq. SPR20/2028 Page 2 October 28, 2020 G. L. c. 66, § 10(c). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. - The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). In its October 20, 2020, petition, the City requests “…the Supervisor of Records to permit the City additional time to process your request...” The City indicates “[a] video search for each of these requests yields 300 videos. On average, Body Worn Camera videos last around 9.85 minutes. Thus, the estimated length of the video you requested is over 49.25 hours. All of this video must be reviewed, vetted and redacted prior to dissemination.” The City explains “[t]he review and redaction process involves a trained video professional first reviewing any police report associated with the video to determine whether there is an open investigation which could be jeopardized by releasing the video. See G. L. c. 4 §7(26) (f). Many times this involves the trained video profession contacting the assigned detective to ascertain where they are in their investigation…the trained video profession must then review each video to determine whether it contains footage relevant to a sexual assault or domestic violence investigation, as the Department is statutorily prohibited from disseminating these records. See G.L. c. 41 §97D; G.L. c. 41 §98F; G. L. c, 209a §8. Simultaneously, the trained video professional must view each video in its entirety to ascertain whether any other protected or sensitive information is contained that must be redacted. Following the redaction process the trained video profession must again review the entirety of the video to confirm all protected or sensitive material is redacted…the process to review and redact a body worn camera video takes on average four-times the total length of the video.” I find that in light of the need to segregate and redact the request, as well as the potential scope of redaction required to prevent unlawful disclosure, the City has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(ii). I hereby grant the City an extension of 15 business days beyond the time allowed in G. L. c. 66, § 10(b)(vi) (a municipality may provide a timeframe not to exceed 25 business days to produce responsive records). To the extent possible, the City must provide responsive records on a rolling basis. Petition to Assess Fees A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records

James Megee, Esq. SPR20/2028 Page 3 October 28, 2020 (Supervisor) under a petition under G. L. c. 66, § 10 (d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § 10(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve a municipality’s petition to allow the municipality to charge for time spent segregating or redacting records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). It is my determination that this request was not made for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the municipality to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d)(i). Municipalities may not assess a fee for the first two hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the municipality has 20,000 people or less. G. L. c. 66, § 10(d)(iii). Where appropriate, municipalities may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4).

James Megee, Esq. SPR20/2028 Page 4 October 28, 2020 Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). In its October 20th petition, the City requests “the Supervisor of Records…to allow for the charging of fees for non-statutorily mandated redactions and to provide an estimate of fees associated with statutorily mandated redactions for your request.” The City indicates “[p]ortions of records responsive to your request may contain information that is exempt from disclosure. Until a review of the records is conducted it is not clear what exemptions may apply to permit or require redaction or withholding. However, based on the City’s superior knowledge of the requested records, it is important to note that there is seldom a body worn camera video that does not require at least some redaction. Moreover, every video must be reviewed by an employee of the Boston Police Department prior to being released.” The City provides a list of examples of “necessary redactions to Body Worn Camera video: 1. Example: car stop where operator gives officer personal identifying information which is captured on Body Worn Camera Audio. See G.L. c. 4 §7(26)(c) 2. Example: car stop where operator’s personal identifying information is visible on officers note pad on the Body Worn Camera video. See G.L. c. 4 §7(26)(c) 3. Example: arrest where depicting the face of the arrestee would cause embarrassment or undue an undue invasion of privacy. See G.L. c. 4 §7(26)(c) 4. Example: Body Worn Camera footage depicting a police interaction involving an individual disclosing personal medical information or information about substance abuse history which would cause embarrassment or undue publicity if disseminated. See G.L. c. 4 §7(26)(c) 5. Example: Body Worn Camera video which includes conversations regarding an individual’s criminal history. See G.L. c. 6 §167 6. Example: Body Worn Camera video which includes reference to an alleged sexual assault or incident of domestic violence. See G.L. c. 41 §97D; G.L. c. 41 §98F; G. L. c. 209a §8. 7. Example: Body Worn Camera footage from an active homicide investigation where witnesses have yet to come forward and will be dissuaded from doing so if there identity is ascertained from disseminated Body Camera video. See G. L. c. 4 §7(26) (f).” Given the public interest served by limiting the cost of public access to the requested records, I am declining to approve the City’s petition to charge for segregation and redaction that is not required by law. Conclusion Accordingly, I find the City has established good cause for a time extension of 15 business days as described above. Further, I decline to approve the City’s petition to charge for segregation and redaction that is not required by law. Please note, however, this does not preclude the City from charging for segregation and redaction that is required by law.

James Megee, Esq. SPR20/2028 Page 5 October 28, 2020 This office encourages Mr. Tsintsadze and the City to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, §10(b)(vii) (an agency or municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably). Any fee estimate by the City must be in compliance with this determination, the Public Records Law, and its Access Regulations. Please note, Mr. Tsintsadze the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, § 10(d)(iv)(4), 10A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Daviti Tsintsadze